Chicago Tribune | Bush nominee frustrates GOP senator at hearing

Specter says support may be in jeopardy

By Andrew Zajac
Washington Bureau
Published July 27, 2005


WASHINGTON -- After politely sparring with Timothy Flanigan, a peeved Sen. Arlen Specter, the chairman of the Senate Judiciary Committee, hinted Tuesday he might not support President Bush's choice to serve as second-in-command of the Justice Department if Flanigan wasn't more willing to allow lawmakers to look over his shoulder.

Specter (R-Pa.) said his backing for the one-time deputy White House counsel would depend on his "understanding of oversight" as explained in written questions from the panel.

It is too early to tell whether Specter's pique will jeopardize Flanigan's confirmation as deputy attorney general. His nomination is not set for a committee vote until after Congress returns from its August recess.

But Specter's veiled threat underscores the frustration among some congressional Republicans at what they perceive as a continual stiff-arm from the Bush administration when looking closely at how the executive branch goes about its business, particularly its conduct of the war on terror.

The White House recently lobbied against legislation, supported by some Senate Republicans, to specifically prohibit the U.S. from "cruel, inhuman or degrading treatment" of detainees and from hiding prisoners from the Red Cross.

During a hearing of the Judiciary Committee on Flanigan's nomination, Specter asked Flanigan for his opinion of that legislation.

Flanigan told Specter he believed that the administration and lawmakers could reach an informal understanding about how much congressional scrutiny of the Justice Department is appropriate.

"In the real world these things get worked out," Flanigan said.

But Flanigan demurred when Specter prodded him to agree to a detailed definition of what oversight would entail.

"I can't brush away two centuries worth of experience in the executive branch," Flanigan said, referring to his belief that the president must zealously guard against too much supervision from Congress.

Flanigan, 52, has bounced between the practice of corporate law and legal service in Republican administrations, including a previous stint at the Justice Department under President George H.W. Bush.

Flanigan is the father of 14 children. Thirteen of them, plus spouses and grandchildren, filled about one-third of the hearing room Tuesday.

After serving as deputy White House counsel to Alberto Gonzales, who now is attorney general and would once again be his boss, Flanigan in November 2002 joined Tyco International as senior vice president and general counsel.

In response to a question from Sen. Dick Durbin (D-Ill.), Flanigan acknowledged that in early 2003 he had day-to-day supervision of Jack Abramoff, a lobbyist under Justice Department criminal investigation for allegedly swindling a series of Indian tribes out of millions of dollars.

Among the work his team did for Tyco, Abramoff listed lobbying the White House. Neither Abramoff, Flanigan, the White House nor Tyco would comment on what the firm was seeking.

As expected, Flanigan was questioned closely about his role in the writing of memos discussing the permissibility of torture of captured enemy combatants.

Flanigan said he participated in two meetings between White House and Justice Department lawyers discussing an August 2002 Justice Department memo that laid out what methods the CIA could use to extract information from senior Al Qaeda operatives.

"The agency asked basically what it could do beyond the normal Q-and-A approach" to interrogation, Flanigan said.

He said that he did not "recall specific questions that I asked," but that his role was to make sure Justice Department lawyers "had the statutory analysis correct . . . that it sounded correct."

The memo, eventually repudiated, argued that abuse short of "death, organ failure, or serious impairment of body functions" did not qualify as torture.

Flanigan said the memo was "sophomoric . . . It was unnecessary. It was useless.

"Torture cannot be the policy of the United States. It is abhorrent," he said.

Pressed by Sen. Patrick Leahy (D-Vt.), Flanigan said the president could not immunize someone against prosecution for engaging in torture, nor could the president ignore specific instructions from Congress unless they were unconstitutional.